In Depth

A federal judge denied a motion for class certification in a suit filed under the Fair Debt Collection Practices Act against
an Indianapolis attorney. However, he did suggest the plaintiff file another motion for class certification for two separate
groups.

U.S. District Judge William Lawrence denied Mark R. Rayl's motion for class certification Thursday because he didn't
believe Rayl is an appropriate class representative for the entire proposed class. Rayl filed the suit in federal court against
Merrill Scooter Moores in May 2009 alleging Moores' form of initial debt collection communication violated the FDCPA.

Moores filed more than 100 notices of claim in Marion County Small Claims Court in May 2008 alleging unpaid or delinquent
dues for the Wildcat Run Homeowners' Association. The notices had a telephone number for Moores that went to a voicemail
message from Moores about the unpaid dues. Rayl received a notice and believed the message was an "initial communication"
by a debt collector as defined by the FDCPA and that Moores violated the act by failing to provide certain information that
the statute requires provided within five days of the initial communication.

Rayl wanted the court to certify a class of people who were sued by Moores regarding the Wildcat Run debt between May 1,
2008 and May 1, 2009, in which "a telephone number leading to a pre-recorded voice mail message was referenced as a contact
telephone number" for Moores on the small claims complaint.

The case, Mark R. Rayl, individually and on behalf of those similarly situated v. Merrill Moores, No. 1:09-CV-554,
was filed in the U.S. District Court, Southern District of Indiana, Indianapolis Division.

Judge Lawrence had concerns regarding the typicality requirement and the related adequacy of representation requirement under
Federal Rule of Civil Procedure 23.

"The problem is this: the proposed class includes all of those who were sued by means of a notice of claim containing
a telephone number that led to the Defendant's pre-recorded voice mail message," he wrote. "Without prejudging
the merits, it is not entirely clear to the Court how those members of the class who did not actually listen to the voice
mail message (or at least learn of its contents) will be able to demonstrate that the voice mail message was an 'initial
communication' as to them."

Judge Lawrence suggested the proposed class actually is made of two groups: people who heard the message and those who did
not. As such, Rayl would only be an appropriate class representative for one of those two groups. The judge explained Rayl
is free to file another motion to certify addressing the concerns of the court or the case can proceed as to Rayl individually.

Moores faces potential sanctions in this case for his failure to appear and his blatant ignoring of the case, opposing counsel,
and the court's orders, according to a Jan. 22 order following a show cause hearing. Magistrate Judge Tim Baker laid out
in the order how Moores, who is representing himself in the action, "has wholly abandoned any defense of this action."
Moores was ordered to respond to Rayl's outstanding discovery by today. Magistrate Judge Baker suggested sanctions such
as reimbursement of Rayl's reasonable fees and costs because of Moores' "insouciant conduct" even if Rayl
doesn't prevail on his claim or even possible admonishment.